Madras High Court
B.Venkatesh vs A.Karlina on 2 April, 2023
C.R.P.No.1294 of 2021 &
C.M.P.No.10115 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.04.2023
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.No.1294 of 2021
C.M.P.No.10115 of 2021
B.Venkatesh ... Petitioner
Vs.
A.Karlina ... Respondent
Civil Revision Petition is filed under Article 227 of the Constitution of
India to set aside the fair and decreetal order dated 22.12.2020 in I.A.No.4
of 2019 in H.M.O.P.No.325 of 2019 passed by the Additional Family court,
Chennai.
For Petitioner : Mr.K.Kannan
For Respondent : No appearance
ORDER
The present Civil Revision Petition has been filed to set aside the
fair and decreetal order dated 22.12.2020 in I.A.No.4 of 2019 in
H.M.O.P.No.325 of 2019 passed by the Additional Family court, Chennai.
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C.R.P.No.1294 of 2021 &
C.M.P.No.10115 of 2021
2. The brief facts of the case are as follows:-
The petitioner and the respondent, who are husband and wife have
filed a petition in H.M.O.P.No.325 of 2019 to dissolve the marriage
soleminised between them on 13.03.2000 on mutual consent. The said
H.M.O.P.was allowed and the said marriage was dissolved by a decree of
divorce on the ground of mutual consent. Subsequently, I.A.No.4 of 2019
was filed by the respondent / wife to direct the petitioner / husband to
return sreedhana and household articles to her and a counter was filed by
the respondent resisting the claim. The court below allowed the said
petition. Aggrieved against the same, the petitioner / husband is before
this Court.
3. The case of the petitioner / husband is that the arranged marriage
between the petitioner and the respondent was soleminized on 13.03.2000
at Welcome Hotel No.241, Purasawalkam High Roard, Chennai – 7, as per
Hindu Rites and Custom in the presence of relatives and elders of both the
families. Since there was no cohabitation between the petitioner and the
respondent and that they are living separately from 23.07.2004, earlier, the
petitioner filed a divorce petition in O.P.No.2395 of 2004 and thereafter,
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C.M.P.No.10115 of 2021
the respondent filed a petition for maintenance in M.C.NO.529 of 2007 and
an interim petition in M.P.No.662 of 2018 on the file of the V Additional
Family Court, Chennai. When the said cases are pending, at the
intervention of both the families, the petitioner and the respondent agreed
to separate themselves by mutual consent. Accordingly, the petitioner and
the respondent withdrawn their respective cases on 21.01.2019 and filed a
petition for divorce by mutual consent in O.P.No.325 of 2019. Thereafter,
the said petition was allowed and the marriage was dissolved. Suddenly,
the respondent filed an application in I.A.No.4 of 2019 seeking return of
sreedhana and household articles, the same is abuse of process of court,
however, the said petition was allowed by the court below, hence this
petition.
4. The learned counsel for the petitioner would submit that upon
receiving the summons in the above said I.A., the petitioner filed his
counter denying the claim of the respondent, however, without considering
the averments contained in the counter, the court below had allowed the
said I.A., which is contrary to law .
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C.R.P.No.1294 of 2021 &
C.M.P.No.10115 of 2021
5. The learned counsel for the petitioner represents that the court
below failed to consider that the claim made by the respondent in the said
I.A., for return of her sreedhana and house hold articles listed in the
petition is not at all maintainable, that too after obtaining mutual consent.
Further, in paragraph no.8 of the H.M.O.P.No.325 of 2019, it is clearly
stated that the respondent was in receipt of sum of Rs.3,00,000/- in cash
towards her permanent alimony and in paragraph nos.9 and 10, it has been
clearly stated that except the above amount, at the time of desertion they
have already exchanged their respective articles from each other and the
respondent has taken all her sreedhana articles, dress materials etc.,
Though the court below clearly extracted the averments in the petition,
however, has allowed the petition, which is baseless and liable to be set
aside.
6. Though notice to the respondent through Court and privately was
ordered as early as on 12.07.2021 and again, fresh notice was ordered to
the respondent on 23.07.2021, the court notice had been returned 'as no
such person' and again notice was ordered to the respondent on
04.11.2022 and the name of the respondent has been printed in the cause
list, there is no appearance on behalf of the respondent, either through
learned counsel or in-person.
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C.R.P.No.1294 of 2021 &
C.M.P.No.10115 of 2021
7. Heard the learned counsel for the petitioner and perused the
documents placed on record.
8. While allowing the petition in I.A.No.4 of 2019, the court below has
observed that after passing of the decree of divorce within a period of 12
days, the respondent has filed the petition for return of articles, that too
house hold articles and small quantity of gold articles. Further, the
respondent before the court below had stated that the petitioner promised
and assured her that he would return the sreedhana and household articles
at the time of filing proof affidavit, however, the petitioner has failed to do
so. Also, the petitioner has not denied the said pleading in the counter. By
stating Order VIII Rule 5 of CPC and the some citations had proceeded to
allow the petition on the ground that a divorced wife can claim maintenance
and also her belongings.
9. On going through the averments in the petition in H.M.O.P.No.325
of 2019, it could be seen at Paragraph Nos.8 and 9, that the petitioner /
husband agreed to pay a sum of Rs.3,00,000/- towards permanent alimony
to the respondent / wife and she has also accepted the same. Further the
petitioner as well as the respondent stated that except the above amount,
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C.R.P.No.1294 of 2021 &
C.M.P.No.10115 of 2021
at the time of desertion, they have already exchanged their respetive
articles from each other and the respondent had taken all her sreedhana
articles, dress materials, etc, by stating so, they have signed the
documents and now the respondent cannot turn around and state that the
petitioner had not handed over the articles and kept in the petitioner's
house.
10. It is relevant to point out that on 05.09.2019, the petitioner has
filed a proof affidavit, wherein at paragraph No.8 among other things he
has stated that “I have agreed to pay a sum of Rs.3,00,000/- towards
permanent alimony to the respondent / wife and the respondent / wife has
also accepted the same and both the parties agreed that the amount will
be paid by the petitioner to the respondent at the time of enquiry by cash
and as such, now I paid a sum of Rs.3 Lakhs to the respondent at the time
of signing this proof affidavit.'
and at paragraph no.9, it is stated that ' at the time of desertion, we have
already exchanged our respetive articles from each other and the
respondent had taken all her sreedhana articles, dress materials etc., and
that she has no claim against the petitioner, such as maintenance, interim
maintenance, alimony, etc., in the past, present and further, either in
movable or immovable properties”.
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C.R.P.No.1294 of 2021 &
C.M.P.No.10115 of 2021
11. Likewise, on going through the proof affidavit dated 05.09.2019
filed by the respondent / wife, wherein at paragraph No.8 among other
things he has stated that “1st petitioner agreed to pay a sum of
Rs.3,00,000/- towards permanent alimony to me and I have also accepted
the same and both the parties agreed that the amount will be paid by the
1st petitioner to me at the time of enquiry by cash and as agreed by him,
now, he has paid the said sum of Rs.3 Lakhs to me at the time of signing
this proof affidavit.'
and at paragraph no.9, it is stated that 'at the time of desertion, we have
already exchanged our respetive articles from each other and I had already
taken my all sreedhana articles, dress materials etc., and that she has no
claim against the petitioner, such as maintenance, interim maintenance,
alimony, etc., in the past, present and further, either in movable or
immovable properties”
12. From the above proof affidavits it is crystal clear that the
petitioner has paid a sum of Rs.3,00,000/ - and the wife has also received
the same and with regard to sreedhana articles, both of the parties have
exchanged their items at the time of desertion itself.
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C.R.P.No.1294 of 2021 &
C.M.P.No.10115 of 2021
13. At this juncture, it is relevant to point out the Judgment passed by
the Hon'ble Apex Court in Ruchi Agarwal Vs. Amit Kumar Agarwal in
SLP (Crl.) No.3769 of 2003, wherein while dealing with the situation,
where the petitioner therein filed a compromise petition before the Family
Court admitting receipt of sreedhana and maintenance in lump sum and
that she will not claim any maintenance in future. She also undertook to
withdraw all proceedings, civil and criminal, filed by her against the
respondents within one month of the compromise deed. In the said
compromise, the husband agreed to withdraw his petition filed under
Section 9 of the Hindu Marriage Act and also agreed to give a consent
divorce as sought for by the petitioner therein. Based on the said
compromise, the petitioner therein, i.e., Ruchi Agarwal obtained the divorce
as desired by her and in partial compliance, she withdrew the criminal case
filed under Section 125 Cr.P.C.,, In those circumstances, a quash petition
was filed before the High Court, which was partly allowed on the ground of
territorial jurisdiction against which the matter was carried to the Supreme
Court. The main plea taken before the Supreme Court was that the
compromise deed was obtained under threat and coercion and that she did
not receive lumpsum amount as maintenance and also sreedhana
properties. Taking into consideration of the events, which took place after
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C.M.P.No.10115 of 2021
compromise deed, the Hon'ble Apex Court held that the criminal complaint
was filed only with a veiw to harass the accused and held that it would be
an abuse of process of court, if the criminal proceedings are allowed to
continue.
14. From the above narrated facts as well as the principles laid down
in Judgment of the Hon'ble Supreme Court mentioned supra, it is clear that
in the petition seeking divorce on mutual consent filed before the Family
Court, the respondent admitted that she has received sreedhana articles,
dress materials etc., and maintenance in lumpsum and that she has no
claim against the petitioner such as maintenance, interim maintenance,
alimony etc., in past, present and future either in movable or immovable
properties. It is based on the said consent, the respondent obtained
divorce as desired by her, but for the reasons better known to her, she has
come forward with the petition seeking sreedhana articles before the court
below. However, this Court finds it extremely difficult to accept the
averments in the application, viz., “that the petitioner has promised and
assured that he will handover all the sreedhana and household articles,
which were given to her at the time of marriage in the presence of both side
family elders and that believing his words, she has signed in the proof
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C.R.P.No.1294 of 2021 &
C.M.P.No.10115 of 2021
affidavit and after completing the court process to dissolve the marriage,
the petitioner did not comply his promise and he has not handed over the
articles', that too when the respondent had earlier in her proof affidavit as
well as the petition/affidavit stated that the entire sreedhana articles were
taken by her at the time of desertion and that she has no claim against the
petitioner such as maintenance, interim maintenance alimony etc., in the
past, present and future, either movable or immovable properties.
Therefore, this Court is of the view that the respondent having received the
relief she wanted without contest on the basis of the terms of the
compromise, cannot now come with a new version, hence the order
passed by the court below in I.A.No.4 of 2019 deserves to be dismissed.
In view of the above and taking note of the conduct of the
respondent, it would be an abuse of process of the court, if the proceedings
are allowed to continue. Accordingly, the present Civil Revision Petition is
allowed and the order passed by the court below in I.A.No.4 of 2019 dated
22.12.2020 is dismissed. No costs.
02.04.2023
Index : Yes/No
Internet : Yes/No
Speaking /Non-Speaking Order
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C.R.P.No.1294 of 2021 &
C.M.P.No.10115 of 2021
To
The Additional Family Court,
Chennai.
https://www.mhc.tn.gov.in/judis
C.R.P.No.1294 of 2021 &
C.M.P.No.10115 of 2021
V.BHAVANI SUBBAROYAN, J.,
ssd
C.R.P.No.1294 of 2021
C.M.P.No.10115 of 2021
02.04.2023
https://www.mhc.tn.gov.in/judis
